The Architecture of a Basic Income
Miranda Perry Fleischer - Professor of Law, University of San Diego School of Law, firstname.lastname@example.org.
Daniel Hemel - Assistant Professor of Law, University of Chicago Law School, email@example.com.
The notion of a universal basic income (UBI) has captivated academics, entrepreneurs, policymakers, and ordinary citizens in recent months. Pilot studies of a UBI are underway or in the works on three continents. And prominent voices from across the ideological spectrum have expressed support for a UBI or one of its variants, including libertarian Charles Murray, Facebook cofounder Chris Hughes, labor leader Andy Stern, and—most recently—former President Barack Obama. Although even the most optimistic advocates for a UBI will acknowledge that nationwide implementation lies years away, the design of a basic income will require sustained scholarly attention. This Article seeks to advance the conversation among academics and policymakers about UBI implementation.
Our prior work has focused on the philosophical foundations of a basic income; here, we build up from those foundations to identify the practical building blocks of a large-scale cash transfer program. After canvassing the considerations relevant to the design of a UBI, we arrive at a set of specific recommendations for policymakers. We propose a UBI of $6,000 per person per year, paid to all citizens and lawful permanent residents via direct deposit in biweekly installments. We argue—contrary to other UBI proponents—that children and seniors should be included, that marriage penalties and cost-of-living adjustments should be rejected, that recipients should have a limited ability to use future payments as collateral for short- and medium-term loans, and that the Social Security Administration should carry out the program. We also explain how a UBI could be financed through the consolidation of existing cash and near-cash transfer programs as well as the imposition of a relatively modest surtax on all earners.
Importantly, the building blocks of a UBI do not necessarily determine its outward face. By this, we mean that economically identical programs can be described in very different ways—for example, as a UBI with no phaseout, a UBI that phases out with income, and a “negative income tax”—without altering any of the essential features. To be sure, packaging matters to the public perception of a UBI, and we consider reasons why some characterizations of the program may prove more popular than others. Our Article seeks to sort the building blocks of a UBI out from the cosmetic components, thereby clarifying which elements of a UBI shape implementation and which ones affect only the outward appearance.
Some Doubts about "Democratizing" Criminal Justice
John Rappaport - Assistant Professor of Law and Ludwig and Hilde Research Scholar, University of Chicago Law School.
The American criminal justice system’s ills are by now so familiar as scarcely to bear repeating: unprecedented levels of incarceration, doled out disproportionately across racial groups, and police that seem to antagonize and hurt the now-distrustful communities they are tasked to serve and protect. Systemic social ailments like these seldom permit straightforward diagnoses, let alone simple cures. In this case, however, a large, diverse, and influential group of experts—the legal academy’s “democratizers”—all identify the same disease: the retreat of local democratic control in favor of a bureaucratic “machinery” disconnected from public values and the people themselves. Neighborhood juries, for example, internalize the costs of punishing their own; neighborhood police, “of” and answerable to the community, think twice before drawing their weapons or stopping a local boy on a hunch. The experts and detached professionals who populate our dominant bureaucratic institutions, in contrast, are motivated by different, less salubrious, incentives. Across the gamut of criminal justice decision-making, the democratizers maintain, the influence of the local laity is a moderating, equalizing, and ultimately legitimating one. A generous dose of participatory democracy won’t solve all our problems, but it’s our best shot to get the criminal justice system back on its feet.
This Article’s warning is plain: don’t take the medicine. “Democratization” wields undeniable rhetorical appeal but will not really fix what ails us—and may just make it worse. The democratization movement, this Article argues, rests on conceptually problematic and empirically dubious premises about the makeup, preferences, and independence of local “communities.” It relies on the proudly counterintuitive claim that laypeople are largely lenient and egalitarian, contrary to a wealth of social scientific evidence. And ultimately, democratization’s dual commitments are on a collision course. The democratizers simultaneously devote themselves to particular ends—amelioration of the biased and outsized carceral state—and to particular means—participatory democracy. What happens if, as this Article predicts, the means do not produce the ends? Which commitment prevails? Worse yet, venerating lay opinion distracts from alternative visions of “democratic” criminal justice that more credibly tackle the critical question of how best to blend public accountability with evidence and expertise.
The Origins of Substantive Due Process
Ilan Wurman - Visiting Assistant Professor and incoming Associate Professor, Sandra Day O’Connor College of Law, Arizona State University.
In the antebellum nineteenth century, courts often voided legislative acts for substantive unreasonableness or for exceeding the scope of legitimate police powers. Contrary to the assertions of a number of modern scholars, however, this tradition does not support the concept of economic substantive due process. Courts voided municipal acts exceeding the scope of legitimate police powers on two grounds—the law of delegation and the law of municipal corporations—that did not apply to acts of state legislatures. The states themselves were limited to reasonable exercises of the police power only when their asserted authority came into potential collision with federal constitutional requirements, most prominently the Commerce and Contracts Clauses.
It was only late in the century, after the adoption of the Fourteenth Amendment, that a police-power version of substantive due process emerged as a limitation on state legislatures as courts began conflating, under the guise of “due process of law,” earlier doctrines that had used a similar vocabulary but for distinct purposes. Police-power limitations on state legislatures regulating purely internal matters therefore probably cannot be justified by any antebellum legal conception of due process of law. A police-power analysis might, however, play some role in a Privileges or Immunities Clause challenge by analogy to antebellum Commerce Clause and Contracts Clause jurisprudence.